The Probable Cause Defense to Malicious Prosecution Claims

A recent Court of Appeals decision serves as a good refresher on the elements and defenses in a malicious prosecution case. In Preston v. Blalock, No. M2014-01739-COA-R3-CV (Tenn. Ct. App. May 29, 2015), tenant’s plastic surgery business had signed a lease to rent landlord’s office suite. Tenant stopped paying rent, and landlord filed a breach of contract claim for rent, build-out costs and attorneys’ fees. Landlord was awarded a default judgment, and tenant eventually paid to satisfy that judgment. Landlord subsequently filed another complaint seeking additional attorneys’ fees. Landlord then nonsuited that complaint but filed again seeking additional rent that he claimed had come due.

While this complaint was pending, tenant filed an abuse of process complaint against landlord. The factual basis for tenant’s complaint was that landlord had filed against tenant personally as a guarantor before filing against the business as the principal, that landlord had filed a document entitled partial satisfaction of judgment when tenant had paid the entire judgment, that landlord had given “false and misleading testimony at depositions,” and that landlord had filed “a multiplicity of claims in order to drive up the amount of attorney’s fees.” The trial court granted summary judgment to landlord in the abuse of process case.

After the abuse of process case was finalized, landlord filed a complaint alleging malicious prosecution against tenant and tenant’s lawyer. He asserted that “defendants filed the abuse of process suit…for an improper purpose and without probable cause in an attempt to gain an advantage in the pending breach of lease litigation[.]” The trial court granted summary judgment to tenant/defendant, and the Court of Appeals affirmed.

The Court stated that a plaintiff claiming malicious prosecution must show “(1) that a prior lawsuit or judicial proceeding was instituted without probable cause, (2) that defendant brought such prior actions with malice, and (3) that the prior action was finally terminated in plaintiff’s favor.” Because “no amount of malice is sufficient to raise a presumption of lack of probable cause,” showing probable cause for the underlying proceedings is a defense to this claim. If a defendant shows that there was probable cause, the issue of malice is irrelevant.

As to the tenant, the Court affirmed the finding that he had probable cause because he “relied on the advice of his attorney.” The attorney had represented tenant in the breach of lease litigation and knew all the relevant information, and there was no allegation that any facts were withheld from the attorney. Accordingly, tenant “relied on [attorney’s] advice in initiating his abuse of process lawsuit against [landlord] and, therefore, acted with probable cause in doing so.”

As to the attorney, the Court affirmed the finding that he had probable cause to file the claim, noting that “[a]n attorney is generally not liable in an action for malicious prosecution where he or she initiated the underlying legal proceedings on behalf of a client in good faith.” (citation omitted). The question is not whether the claim was likely to be successful, but whether it was “groundless.” Here, the attorney showed that he researched the legal issues and met with another attorney to discuss the claim before filing. Accordingly, the Court found that his “actions clearly do not rise to the level contemplated by a malicious prosecution action.”

While this case is largely about a landlord and tenant who really disliked each other, it serves as a good overview of a malicious prosecution claim. Since this cause of action is not seen often, this case is a good reminder of the elements and potential defenses to such a claim.